KEY POINTS:
A showdown is looming between the Waitangi Tribunal and the Office of Treaty Settlements at a judicial conference on Wednesday - even though the tribunal may be armed with blanks.
Convened by tribunal acting chairperson Judge Carrie Wainwright, the conference is to decide whether there should be an urgent inquiry into complaints by at least 50 Maori groups that they have been unfairly treated and prejudiced by the Crown's Treaty settlement process.
Its outcome could stall Treaty settlement agreements of a number of land claims including Ngati Whatua's $90 million deal for land on Auckland's Tamaki isthmus and North Shore. But the question many will be asking is whether the Office of Treaty Settlements will take any notice of a tribunal that can make recommendations but not enforce them. Is the tribunal a commission of inquiry with bark but no bite?
At issue is widespread disquiet about the Treaty settlement process. It's a diverse range of complaints - everything from groups being excluded from negotiations, groups being denied autonomy, to concerns about secret exclusive deals, and problems with Landcorp sales that have led to land occupations. Underlying the disquiet is a stoic patience that justice will eventually prevail, but not just yet.
To be held at Pipitea marae in Wellington, the gathering, of a phalanx of lawyers, highlights an increasingly dysfunctional relationship between the Office of Treaty Settlements and the tribunal.
On the one hand, the tribunal directs the Crown to consider the claims of various groups in a fair and equitable way, in keeping with the Treaty of Waitangi. On the other, the Crown, in the form of the Office of Treaty Settlements, frequently ignores the tribunal recommendations, rides roughshod over dissenting groups and unilaterally decides with whom, when and how it will make settlements.
Wainwright has put the problem in the public eye following a similar assembly in September. That was to decide whether to have an urgent hearing to deal with complaints by several Auckland tribes denied redress for past wrongs because of the Crown's proposed exclusive settlement with Ngati Whatua o Orakei.
The judge is yet to decide how she will deal with Auckland's border disputes. Meanwhile, she has expanded the scope of that decision to include eight other applications for urgency or remedies currently before the tribunal. As if that is not enough, she has also opened the hearing to more grievances - similar alleged failures by the Crown in Treaty terms regarding the $200 million Te Arawa settlement, and issues involving the Whanganui, National Park, East Coast and King Country inquiries.
Wainwright is at pains to point out it is not the purpose of the judicial conference, or any hearing that might follow, "to embark upon a general inquiry into the Crown's policy and practice concerning Treaty settlements". She says any inquiry would focus on "the evidence and arguments of claimants alleging present breach and prejudice in a real and practical way".
Despite the judge's direction, it is difficult to see the Wednesday conference as anything other than a head-on confrontation of the Office of Treaty Settlement's unfair practices. Some may also see it as an effort by the tribunal - which has been described as a toothless tiger - to reassert its judicial authority.
Russell McVeagh partner Paul Majurey says Wainwright's proposal is not surprising. "The superior courts have consistently avoided reviewing what they consider to be a political process and complaints to the Crown are seen to fall on deaf ears. So the only safety valve to ensure enduring settlements for all tangata whenua and the wider community is the tribunal."
Rangitauira partner Annette Sykes sees the Wednesday conference as significant. "For the first time the tribunal is looking at the very policy being promulgated around Treaty settlements frameworks, whereas before it was about process issues. Here, we're going to the fundamental underpinnings."
A common theme among at least 20 claimants is criticism of the Crown's policy of negotiating only with "large natural groupings" - a practice made worse by the Crown arbitrarily deciding what is an acceptable grouping, and refusing to negotiate either with small groups, or with subsets of large groups on particular issues. Examples include Te Taou in Auckland, Ngati Makino in Rotorua and Waitaha in Tauranga.
"It's quite disgusting," says Sykes who is counsel for Ngati Makino. "The tribunal has made several recommendations in favour of groups like Ngati Makino and they've just been totally ignored. It's a gross breach of natural justice and good faith."
Karen Feint, representing Waitaha, agrees: "The Crown has established the Waitangi Tribunal to give it advice on matters relating to the Treaty of Waitangi, but it's choosing to disregard that advice."
Darrell Naden, of Tamaki Legal, representing a large number of groups including Ngati Hekeawai in Whanganui, says behind the large natural groupings policy is a "trickle-down theory" - that the benefits of large group settlements will, eventually, find their way to smaller groups. But he points out that's at odds with normal settlement practices where those who suffer loss are the parties who get paid. "Normally, there is no intervening entity that receives the settlement on behalf of aggrieved parties. This aspect of the Crown's approach to settling Treaty grievances gives rise to further Treaty grievances."
Another common theme is the difficulty finding out what the Crown's settlement policies and practices are. The problem isn't helped by the Office of Treaty Settlements being guided, not by statute, but by a policy framework known as the Red Book - a kind of operating manual developed out of a series of Cabinet documents. The difficulty for claimants is that much of the Red Book is open to interpretation. That makes it hard to know for example what, if any, methodology is followed for dealing with groups who have an interest in an area, but don't fit into the group which the Crown is negotiating with. To many groups it seems to be a policy of "like it or lump it".
Majurey, who represents and descends from the Marutuahu tribes, says the issue is aggravated by settlement processes too often shrouded in secrecy. A case in point is the Crown-Ngati Whatua negotiations which were conducted in secret for three years and resulted in a deal that locks out all other claimant groups from the Auckland central isthmus and from tracts of Navy land in Devonport.
Feint will be asking the conference to look at how the Crown decides the priority of claims. She says there are no stated principles for assessing which claimant group to deal with next. Groups enter into negotiations with the Crown via their political clout. "The problem is some of the most marginalised, dispossessed, poorest iwi have no ability to exercise political influence on the Crown, so they just get left sitting by the sidelines."
Other categories of complaint to come under Judge Wainwright's purview include the thorny issue of how the Crown is managing land-banked properties - land put aside for settlements.
One such case involves property sales by Landcorp that could be part of the settlement package for the National Park Inquiry claimant groups. That led to Ngati Hinewai's occupation of the Taurewa block in protest against its proposed sale.
The transfer of Crown land to the Department of Conservation is yet another issue likely to exercise the judge - especially the Crown's policy that Conservation land will not be included in settlements.
Quite how Wainwright handles the onslaught of complaints and quite how the Office of Treaty Settlements reacts remains to be seen. Even if a decision is made to hold an urgent inquiry into settlement grievances, and even if the tribunal makes recommendations on alternative negotiation processes, there's little sign the Office of Treaty Settlements will change its course.
It's a cynical view to which many of the claimants are resigned - one that reduces the tribunal's role to little more than a forum to document grievances that will be re-heard sometime in the future.
* Claimants represented at the Waitangi Tribunal judicial conference include:
Te Arawa
Ngati Makino, Ngati Whakaue, Ngati Rangitihi, Waitaha.
National Park
Descendants of Kurapoto and Maruwahine, Tamakana, Ngati Hinewai and Ngati Hotu. Peoples embraced by Uenuku, Ngati Rangi.
Auckland
Te Taou, Marutuahu, Ngati Te Ata Waiohua, Ngai Tai ki Tamaki, Hauraki Maori Trust Board, Te Kawerau a Maki.
Whanganui
Ngati Rangatahi, Ngati Hekeawai, Nga Wairiki
East Coast
Te Whanau-Hapu o Ruawaipu, Te Whanau a Te Aotawarirangi, Tapaeururangi, Ngati Rangipureora, Ngati Kahukuranui, Ngai Tarore, Ngati Horotai, Kauaetangohia, Hapu Matua, Ngati Ruapani, Te Umu o Te Wahakapi, Ngati Ruawaipu
King Country
Te Ihi Ngarangi, Tohengaroa whanau of Ngati Waiora
Other Claimants
Ngati Whatua o Kaipara, Nga Uri o Te Kooti Rikirangi, Mohaka, Ngati Pahuwera, Nga Paerangi, Kopere Tanoa 1st descendants, Tanoa Te Uhi, Te Whiutahi, Ngapuhi Nui Tonu, Ngati Hikitanga, Ngati Manuni, Wi Taka Whanau, Te Komiti Marae o Kauwhata Trust, Nga Uri Tangata o Ngati Kauwhata ki Te Tonga.
